botswana/namibia - Cour international de Justice

Secextern would appreciate the serious contemplation of the abovementioned proposal by the
Botswana Government and would prefer to have this long-standing matter settled as soon as
possible." (Botswana Memorial, Annex 53).
77. This reasoning has no merit. In the first place, Botswana had carefully consulted with the
United Nations Council for Namibia and the South-West African People's Organization
(SWAPO) before holding talks with South Africa: see the Botswana Memorial, pp.75-6,
paras. 166-71. The approval of the United Nations Commissioner for Namibia was also
obtained (Botswana Memorial, Annex 43).
78. Secondly, the South African Government was legally bound by the Pretoria Agreement of
19 December 1984 and the conclusions of the Joint Survey Report (Botswana Memorial,
Annex 48). The Government of Botswana continues to rely upon the legal validity of those
intergovernmental instruments. It is also worth noting that the South African Government was
only making a proposal and that no express challenge to the Joint Survey Report was
expressed until the proceedings of the JTTE in 1993-4.
79. There is a further consideration of the first importance. Both during the proceedings of the
JTTE, and in its Memorial in the present proceedings, the Government of Namibia has relied
upon South African acts, statements and transactions, whenever this has seemed to be
convenient. In this respect Namibia cannot be allowed to approbate and reprobate. The
principle of good faith requires consistency of dealing.
80. In this context it is to be recalled that the Namibian Memorial asserts that after the
termination of the Mandate in 1966 no action South Africa 'might now take could in any way
limit or derogate from Namibia's rights'. (Namibian Memorial, p.116, para. 285). This
assertion is completely inconsistent with the policy of the Memorial in invoking South
African activities as evidence of title in the period ending in 1990: see the Namibian
Memorial, p.100, paras. 248-9; and 114-16, paras. 281-5.
81. It is also to be recalled that the Government of Namibia approached the South African
Government of the time for assistance. The approach was prompted by the publication of an
Aide-Mémoire by the Government of Botswana dated 10 March 1992. (Botswana Counter-
Memorial, Annex 44) in which Botswana affirmed its sovereignty in respect of
Kasikili/Sedudu. In its letter of 19 March 1992 to the South African Minister, Mr. Botha, the
Government of Namibia stated the following:
"Enclosed herewith is an Aide Memoire issued on 10th March 1992 by the Botswana High
Commission in Windhoek.
A serious claim is made in the said Aide Memoire that "a team of experts made of surveyors
from the Republic of South Africa and Botswana was assembled in 1985 to go and determine
the actual boundaries of the disputed island."
The Aide Memoire further claims that those 'surveyors'
'.... reported that the island belonged to Botswana territory as determined by the main channel
on the north of the Island.'